Gaiso v. Commissioner of Social Security

Filing 16

MEMORANDUM & ORDER: The Commissioners motion 10 for judgment on the pleadings is granted, the final judgment to deny benefits under the Social Security Act is affirmed, and Gaisos motion 12 is denied and the complaint is dismissed. Ordered by Judge Frederic Block on 12/7/2015. (mji)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LOUIS GAISO,
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-CV-01057 (FB)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Appearances:
For the Plaintiff:
HAROLD SKROVRONSKY, ESQ.
1810 Avenue N
Brooklyn, New York 11230

For the Defendant:
ROBERT L. CAPERS, ESQ.
United States Attorney
RACHEL G. BALABAN, ESQ.
Assistant United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201

BLOCK, Senior District Judge:
Louis Gaiso (“Gaiso”), a former middle school math teacher, seeks review of the
final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for disability benefits under the Social Security Act (the “Act”). Both
parties move for judgment on the pleadings. The ALJ’s decision is supported by
substantial evidence. The Commissioner’s motion is granted and Gaiso’s motion is
denied.

I.
On August 1, 2012, Gaiso filed an application for Disability Insurance Benefits.
Gaiso alleged disability from depression and anxiety as of January 1, 2010. After the
Social Security Administration denied his application, Gaiso had a hearing before an
Administrative Law Judge (“ALJ”) on December 12, 2013.
In a written decision issued on April 24, 2014, the ALJ concluded that Gaiso was
not disabled. Applying the familiar five-step process,1 the ALJ first determined that
Gaiso had not engaged in substantial gainful activity since January 1, 2010. Second, the
ALJ found that he suffered from alcohol dependence, major depressive disorder and
generalized anxiety disorder. Third, the ALJ determined that his impairments did not
meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404
Subpart P, Appendix 1 (the “Listing”). Next, the ALJ considered all of Gaiso’s
impairments, including substance use disorder, and found that Gaiso had the residual
functional capacity (“RFC”) to perform a full range of work at all exertional levels, but

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Social Security Administration regulations establish a five-step process for
evaluating disability claims. The Commissioner must find that a claimant is
disabled if she determines “(1) that the claimant is not working, (2) that he has a
‘severe impairment,’ (3) that the impairment is not one that conclusively requires a
determination of disability, [] (4) that the claimant is not capable of continuing in
his prior type of work, [and] (5) there is not another type of work the claimant can
do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (citing 20 C.F.R. §
404.1520(b)-(f)). The burden of proof is on the claimant in the first four steps, but
shifts to the Commissioner at the fifth step. See 20 C.F .R. § 404.1560(c)(2); Shaw
v. Chater, 221 F.3d 126, 132 (2d Cir. 2000).
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with the following nonexertional limitations:
Gaiso cannot:
[i] maintain a regular schedule;
[ii] make appropriate decisions;
[iii] relate to others; or
[iv] deal with stress.
AR 60. Applying that RFC to the remaining steps, the ALJ ruled that Gaiso was unable
to perform any past relevant work and there were no jobs in the national economy that
he could perform.
But because Gaiso had a substance use disorder, the ALJ was required to
determine if it was a contributing factor material to the determination of disability. The
ALJ found that if Gaiso stopped drinking alcohol, his RFC would allow him to perform
a full range of work at all exertional levels with the following nonexertional limitations:
[i] limited to understanding, remembering and carrying out simple
instructions;
[ii] maintaining attention and concentration for simple, routine
tasks; and
[iii] working in a low stress environment meaning only occasional
decision-making and judgment, occasional changes in the work
setting, procedures and skills, and occasional interact with
supervisors and coworks and no interaction with the general public.

AR 64. Applying this RFC, the ALJ ruled that Gaiso was still unable to perform past
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relevant work, but could perform other work that exists in significant numbers in the
national economy. As such, the ALJ determined that “substance use disorder is a
contributing factor material to the determination of disability because [Gaiso] would
not be disabled if he stopped the substance use.” AR 66.
The Appeals Council subsequently denied Gaiso’s request for review, rendering
final the Commissioner’s decision. Gaiso timely sought judicial review. Gaiso
contends that substance abuse is immaterial because he is totally disabled from his
impairments and unable to work.
II.
“In reviewing a final decision of the Commissioner, a district court must
determine whether the correct legal standards were applied and whether substantial
evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.
2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In determining
“whether the agency's findings are supported by substantial evidence, ‘the reviewing
court is required to examine the entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.’” Talavera v. Astrue, 697
F.3d 145, 151 (2d Cir. 2012) (internal citations omitted). Once an ALJ makes a finding
of fact, the reviewing court can reject those facts “only if a reasonable factfinder would
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have to conclude otherwise.” Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 448 (2d
Cir. 2012).
An applicant is “disabled” under the Act if he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment...which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Act precludes payment of benefits
if alcoholism or drug addiction are a contributing factor material to a determination of
disability. See 42 U.S.C. § 423(d)(2)(c). Substance use is material if the claimant would
not be found disabled if he were to stop using alcohol or drugs. See 20 C.F.R. §
404.1535(b)(1).
Notably, the Second Circuit has clearly held that the claimant must demonstrate
that substance abuse is not a contributing factor material to disability. Cage v. Comm’r
of Soc. Sec., 692 F.3d 118, 120 (2d Cir. 2012) (“The ALJ did not err in denying Cage
benefits, because SSI applicants bear the burden of proving that they would be disabled
in the absence of [substance abuse], and substantial evidence supported the ALJ’s
finding that Cage would not be disabled absent [substance abuse]”) (emphasis
supplied); Wehrhahn v. Colvin, –F.Supp.3d–, 2015 WL 3961097 (D.Conn. 2015).
Substantial evidence supports the ALJ’s determination that Gaiso’s substance use
is material. For example, Dr. Anne Skamai (“Skamai”), the Commissioner’s
consultative physician, reported that Gaiso was intoxicated during his examination
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because he had three “vodka and tonic cocktails” before he arrived. AR 215. Skimai
confirmed diagnoses of Gaiso’s anxiety and depression and found that Gaiso’s
impairments were caused by substance abuse, depression, anxiety, and cognitive
deficits.
In 2013, Gaiso sought treatment from psychologist Dr. Howard Honigman
(“Honigman”), who encouraged him to enroll in a twelve-step program to manage his
alcohol abuse. Honigman’s notes indicate that Gaiso’s drinking undermined his ability
to keep his job.
During the administrative hearing, Gaiso testified that he sleeps all day, which
causes him to be excessively absent from work and has made maintaining work
difficult. He denied that drinking caused his employment problems. However, when
further questioned about his drinking, Gaiso acknowledged problems in the past, but
stated he was “mostly sober” since September 2010, although he drank for “about four
to five months.” AR 39. Gaiso stated that drinking was “self-medication.” AR 43.
Gaiso contends that the opinion of his treating physician, Dr. Alan Kouzmanoff
(“Kouzmanoff”), who he saw in 1996, should have been accorded more significant
weight. But the ALJ acted within its discretion when discounting Kouzmanoff’s
opinion that Gaiso did not suffer from a substance-use disorder because Gaiso only met
with Kouzmanoff once and the rest of their interactions were over the phone. AR 36;
see 20 C.F.R. § 404.1527(c)(i); Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2007)
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(holding that the “ALJ acted within the acceptable zone of choice in declining to give
[the treating physician’s] opinion controlling weight” because of the infrequent nature
of treatment). Skimai observed that Gaiso’s treatment by Kouzmanoff was akin to
Giaso having “a pyschiatrist’s acquaintance . . . who sends him Prozac by mail.” AR
214.
Gaiso proffered no further evidence to establish the immateriality of his drinking.
At most, he attempted to minimize the amount he drank. Gaiso failed to meet his
burden. See Cage, 692 F.3d at 124(citing Bowen v. Yuckert, 482 U.S. 137, 146 n.
5(1987) (“It is not unreasonable to require the claimant, who is in a better position to
provide information about his own medical condition, to do so.”)).
III.
For the foregoing reasons, the Commissioner’s motion for judgment on the
pleadings is granted, the final judgment to deny benefits under the Social Security Act
is affirmed, and Gaiso’s complaint is dismissed.

SO ORDERED.
/S/ Frederic Block_________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
December 7, 2015

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